Morris v. Morange — 4 Abb. Pr. 447

Majority

p. 447

MORRIS against MORANGE.

Court of Appeals ;

March Term, 1868.

Headnote

Appeal.—Final Judgment.—Time for giving Notice.

The usual decree for a sale, in an action to foreclose a mortgage, directing the premises to be sold by the sheriff', and a judgment for any deficiency that may arise to be docketed by the clerk, is, before those proceedings are had. a final judgment,” within the provisions of the Code as to appeals.^[1]

A judgment is to be regarded as interlocutory, only when it reserves something for the court judicially to determine.

Appeal from an order.

This action was brought to foreclose the defendant’s equity of redemption in mortgaged premises. On the 10th of February, 1868, a judgment was entered at special term,

p. 448

directing a sale of the premises for the satisfaction of the debt, with the costs and expenses of the action, and that the defendant pay any deficiency which might appear after the sale.

In pursuance of the judgment, the premises were duly sold by the sheriff of Kings County, in which they were situated. The sheriff made his report of sale May 25, 1864, and stated therein that the deficiency amounted to $1,024.47. The report was filed in the office of the clerk of Kings County, and an order was entered confirming it, May 26, 1864, and the deficiency docketed by the clerk May 27,1864.

Notice in writing of the judgment was served personally on the defendant on the 16th of February, 1863, and on his attorneys on the next day. A notice of appeal from the judgment was deposited by defendant in the post-office in New York, March 19, 1863, addressed to the plaintiffs attorneys at Brooklyn, and another addressed to the clerk of Kings County, Brooklyn.

The notice of appeal was set aside by an order of the court, at special term, on the ground that it was served too late upon the clerk, which order was afterwards affirmed by the general term.

No written notice of the order confirming the report of sale, and stating the deficiency, was given until November 25, 1867, although the defendant had served on the plaintiff’s attorneys a notice of appeal from the said order on November 23, 1887.

II. E. Davis, for the defendant, appellant.

I. The time limited for an appeal is thirty days after written notice of the judgment (Code of Pro., §332; 13 How. Pr., 423 ; 14 Wend., 529 ; 6 Paige, 127). Formal notice is necessary (9 Id., 607 ; 7 Abb. Pr., 352 ; 14 How. Pr., 522 ).

II. The order cannot be sustained on the theory that as the time limited for an appeal from the order of sale had expired, therefore the appellant could not appeal from the judgment for the deficiency. 1. Section 329 of the Code, and section 11, subd. 1, contemplate that the appeal is to be taken from the judgment; and on such appeal, the

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court may review any intermediate order involving the merits, and necessarily affecting the judgment. 2. The judgment here contemplated is the final judgment in the action, which contains the final action of the court upon the cause,' and upon which process is to be issued to enforce the same ( 14 Wend., 539 , 542-4; 1 Comst., 423 ; 34 , Barb., 69 ; 45 Id., 348 ; 42 Id., 441 ; 19 N.Y, 534 ; 12 N. Y [2 Kern.], 591; 4 N. Y., 415 ; 2 Abb. Pr. N. S, 454). 3. The order for sale is essentially interlocutory. The land is but a pledge.; it may be of no moment to the mortgagor that it be sold ; but when a judgment is docketed against him, a substantial right is affected, and the law secures him the right to appeal therefrom.

Theodore F. Jackson, for the plaintiffs, respondents, relied upon Johnson v. Everett (9 Paige, 638), and Mills v. Hoag (7 Id., 19).

Defendant insists that the judgment entered February 10, 1863, was only interlocutory, and that the judgment did not become final until the entry of the order confirming the report of sale, May 27, 1864; and as he had received no written notice of this order until November 23, 1867, his notice of appeal on the 23d was effectual.

The question, then, arising on that motion is, whether the judgment entered February 10,1863, was interlocutory or final, or whether it became final only on the entry of the order confirming the report of sale.

As a general rule, undoubtedly, when a judgment or order directs a reference, although it provides for the decision of the main questions at issue, it is deemed interlocutory.

But I think this can only be when there is something reserved for the court judicially to determine. In the present case the court determined all that it was necessary to determine judicially, by the judgment of February 10, 1863. There was nothing more for it to decide. What was left was to be done by its ministerial officers.

The sheriff sent in his report, which was filed, and art order was entered, as of course, confirming it. The docket

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of the deficiency by the clerk is merely a clerical act in performance of the directions of the judgment entered in the order of February, 1863.

In Mills v. Hoag (7 Paige, 18), the chancellor says: “The usual decree in mortgage cases, for the sale of the property and the distribution of the fund among the parties and finally disposing of the question of costs, is a final decree......, and is constantly enrolled as such; although the master’s report of - the sale and distribution may be.excepted to if it is erroneous, and it may require a subsequent order of the court to dispose of the questions which may thus arise.”

In Johnson v. Everett (9 Paige, 636), a decree was made by the vice-chancellor of the 7th circuit, declaring the rights of the parties, and directing an' account in conformity therewith, but reserving the consequential directions and the question of costs until the coming in of the master’s report.

The decree was entered January 5, 1842, and on the 28th of the same month a copy thereof was served on the solicitor of the. defendants, whose appeal was not entered until some time in the following May. The only question therefore was, whether the decree was final as to the appellants, or was an interlocutory decree, from which they should have appealed within the fifteen days allowed by the statute for appealing from interlocutory orders and decrees of the vice-chancellor. The chancellor decided that the decree was interlocutory, on the ground that further directions, and the question of costs, were reserved until the coming in of the master’s report. “ But (ho adds) “ if the decree, in addition to the reference to the master to compute,” &c., “ proceeds further, and gives the usual directions in such cases, that upon the coming in and confirmation of the report of the master, the premises shall be sold, and that the master........pay the amount........out of the proceeds of such sale, and directing the mortgagor to pay the deficiency...... —the decree is final; although the mortgagor may have the right to except to the master’s report of the amount due.

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The case before us is still stronger. The action of the sheriff was purely ministerial. No exception could have been taken to his proceedings, so that they could be reviewed judicially. His duty was merely to enforce the judgment, and to render a report of his action, which was to be filed with the clerk without any further judicial intervention of the court.

It may be proper to add that the reasoning by which I have arrived at this result in no respects conflicts with the recent decision of this court in Clark v. Brooks (2 Abb. Pr. N. S., 385).

The judgment appealed from in that case was purely interlocutory; there were questions expressly reserved for the further adjudication of the court—questions upon which the intervention of the judicial action of the special or general term was indispensable before a final judgment could be entered.

The order should be affirmed, with costs.

Woodruff, Grover, Mason, Miller, and Wright, JJ., concurred.